Prohibiting Casinos from Advertising: The Irrational Application of 18 U.S.C. 1304
![handle is hein.journals/arz38 and id is 1393 raw text is: PROHIBITING CASINOS FROM ADVERTISING:
THE IRRATIONAL APPLICATION OF 18
U.S.C. § 1304
Richard Shawn Oliphant
I. INTRODUCTION
Title 18 U.S.C. § 1304 prohibits the broadcast of any advertisement of
or information concerning any lottery.' The historical underpinnings of this
statute reveal that it was enacted to promote consistency with postal prohibitions
placed on traditional lotteries2 in the early 1800s.3 However, the statute is no
longer applied to traditional lotteries conducted by the states4-the very reason
it was enacted in the first place.5 Nor does the statute apply to lotteries operated
by the government,6 charitable lotteries,7 lotteries conducted by any
1. 18 U.S.C. § 1304 (1984 & Supp. 1996) provides:
Whoever broadcasts by means of any radio or television station for which a
license is required by any law of the United States, or whoever, operating any
such station, knowingly permits the broadcasting of, any advertisement of or
information concerning any lottery, gift enterprise, or similar scheme, offering
prizes dependent in whole or in part upon lot or chance, or any list of the prizes
drawn or awarded by means of any such lottery, gift enterprise, or scheme,
whether said list contains any part or all of such prizes, shall be fined under this
title or imprisoned not more than one year or both.
Each day's broadcasting shall constitute separate offenses.
2. The Supreme Court has recognized a typical lottery as a scheme in which tickets are
sold and prizes are awarded among the ticketholders by lot. FCC v. American Broadcasting Co.,
347 U.S. 284, 291 n.8 (1954).
3. See infra notes 48-69 and accompanying text.
4. See infra note 72 (discussing the effect of 18 U.S.C. § 1307(a)(1) (1984 & Supp.
1996)).
5. See infra notes 48-69 and accompanying text.
6. 18 U.S.C. § 1307(a) (1984 & Supp. 1996) provides that §§ 1301-1304 do not
apply to:
(a) The provisions of sections 1301, 1302, 1303, and 1304 shall not apply to-
(1) an advertisement, list of prizes, or other information concerning a
lottery conducted by a State acting under the authority of State law which is-
(A) contained in a publication published in that State or in a State
which conducts such a lottery; or
(B) broadcast by a radio or television station licensed to location in
that State or a state which conducts a lottery; or
(2) an advertisement, list of prizes, or other information concerning a
lottery, gift enterprise, or similar scheme, other than one described in paragraph
(1), that is authorized or not otherwise prohibited by the State in which it is
conducted and which is-
(A) conducted by a not-for-profit organization [tax exempt under §
501 of the IRS code] or a governmental organization; or](ViewImageLocal?handle=hein.journals/arz38&div=61&collection=&method=preview&ext=.png&size=3)
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Prohibiting Casinos from Advertising: The Irrational Application of 18 U.S.C. 1304
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